* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 3 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JOSEPH MACASTLE JACKSON,

Petitioner-Appellant,

v. RON CHAMPION,

Respondent-Appellee. No. 96-6367 (D.C. No. CIV-96-637-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK, BARRETT, and MURPHY, Circuit Judges

.

After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without ora l argument.1 Mr. Jackson deposited his pro se § 2254 petition an d his application to

proceed in forma pauperis in the prison mail systemon March 27, 1996. These documents were received by the district court on Ma rch 29, 1996. The district court, however, did not officially file Mr. Jackson ’s petition until April 26, 1996, two days after the enactment of AEDPA. The government moved to dismiss based on Mr. Jackso n’s failure to comply with 28 U.S.C. § 2244(b)(3)(A), amended by AEDPA to require a petitioner to obtain permission from the appropriate circuit court of appeals to file a second or successive habeas petition. See Coleman v. United States , 106 F.3d 339, 340 (continued...) -2- Petitioner Joseph Macastle Jackson seeks leave to appeal from the district court’s order dismissing his 28 U.S.C. § 2254 habea s corpus petition as abuse of the writ. We construe his application for a certif icate of appealability as an application for a certificate of probable cause, de ny the application, and dismiss this appeal. The Supreme Court has recently held that the certif icate of appealability provisions of the Antiterrorism and Effective DeathPenalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996) , are not applicable to cases filed before April 24, 1996, AEDPA’s date of enactm ent. See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997); see also United States v. Kunzman , ___ F.3d ___, No. 96-1310, 1997 WL 602507, at *1 n.2 (10th Cir. O ct. 1, 1997) (en banc). Because Mr. Jackson filed his petition on March 27, 1996, prior to AEDPA’s date of enactment, he does not need a certificate of app ealability to proceed on appeal. 1 He is, however, subject to the previous requireme nt of 28 U.S.C. § 22531 (...continued)

(10th Cir. 1997). Applying Houston v. Lack , 487 U.S. 266, 270-72 (1988) (holding a pro se prisoner’s notice of appeal timel y filed if deposited in the prison mail system within the applicable time limit), the magistrate judge deemed Mr. Jackson’s petition filed on March 27, 1996, determi ned that Mr. Jackson did not have to apply to the circuit court of appeals for l eave to file a successive petition, and recommended the motion to dismiss be denied. S ee also Fed. R. App. P. 4(c) (inmate notice of appeal is timely filed if deposit ed in prison’s mail system on or before filing deadline). We agree with this determ ination, and further conclude that this “mailbox rule” is applicable here. Accor dingly, we consider Mr. Jackson’s petition filed on the date he deposited i t in the prison mail system, March 27, 1996, and therefore conclude that AEDPA’s certificate of appealability provision does not apply. -3- that he obtain a certificate of probable cause to appeal. As we held in Lennox v.
Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997), overruled in part byKunzman , 1997 WL 602507, Mr. Jackson’s burden is the same under either provision. In order to be eligib le for a certificate of probable cause, Mr. Jackson must “make a substantial showing of the denial of a federal constitutional right.” Id. For the following reasons, we conclude that Mr. Jackson has failed to make the requisite showin g. On December 20, 1983, Mr. Jackson was sentenced to five years’ imprisonment for conspiracy to commit murder in the first degree and life imprisonment for murder in the first degree. His d irect appeal was affirmed by the Oklahoma Court of Criminal Appeals on August 7, 1987. See Jackson v.
State , 741 P.2d 875 (Okla. Crim. App. 1987). Although the record is not entirely clear on the matter, it appears that the Oklahoma C ourt of Criminal Appeals-4-

subsequently denied Mr. Jackson’s application for p ost-conviction relief and two state petitions for habeas corpus relief. This is Mr. Jackson’s third federal application forhabeas relief. His first petition, filed October 28, 1988, was denied by the district court on the merits. His second petition, filed January 10, 1991, was di smissed sua sponte by the district court as abuse of the writ. On appeal, th is court vacated and remanded the case, stating that the government must first plead abuse of the writ before dismissal is proper. See Jackson v. Champion , No. 92-5069, 1992 WL 339062, at **3 (10th Cir. Nov. 17, 1992) (unpublished). On re mand, the district court again dismissed the petition as abusive, and by order andjudgment, this court affirmed.
See Jackson v. Champion , No. 93-5158, 1993 WL 482969, at **2 (10th Cir. Nov. 24, 1993) (unpublished). The district court, adopting the recommendation of the magistrate judge, dismissed Mr. Jackson’s current petition as an abus e of the writ. See Rule 9(b) of the Rules Governing Section 2254 Cases. Pursuant t o Rule 9(b) and 28 U.S.C. § 2244(b), a habeas corpus petition may be dismissed as an abuse of the writ if it reasserts claims previously adjudicated on the meri ts, or asserts new claims unjustifiably omitted from a previous petition. Se e Watkins v. Champion , 39 F.3d 273, 275 (10th Cir. 1994).-5-

Mr. Jackson has not provided this court with copies of his previous petitions. Moreover, he has not challenged the acc uracy of the magistrate judge’s summary of the issues presented. He has made no attempt to explain his failure to raise his claims in his previous petitions, and the refore, we are aware of no reason to find an exception to the abuse of the writ doctr ine. Mr. Jackson failed to demonstrate either cause and prejudice, or a fundamental miscarriage of justice in either his re sponse to the government’s motion to dismiss as abuse of the writ or in his ap pellate brief. See McCleskey v.
Zant , 499 U.S. 467, 494-95 (1991) (holding that in orde r to excuse failure to raise a claim in an earlier petition, petitioner “must sh ow cause for failing to raise it and prejudice therefrom” or “a fundamental miscarri age of justice” resulting from the court’s failure to consider the claim); accord Andrews v. Deland , 943 F.2d 1162, 1171 (10th Cir. 1991). Instead, Mr. Jackson continues to argue the allegations of trial error which form the substance of his habeas corpus claims. Consequently, we conclude that Mr. Jackson has fail ed to show that the district court’s dismissal constituted the denial o f a federal constitutional right.-6-

His request for a certificate of probable cause is DENIED, and the appeal is DISMISSED. All of Mr. Jackson’s pending motions ar e DENIED. The mandate shall issue forthwith. Entered for the Court

James E. Barrett Senior Circuit Judge